A California appeals court ruled this week that threatening posts made by readers of a website are not protected free speech, allowing a case charging the posters with hate crimes and defamation to proceed.
The case raises fundamental questions about cyberbullying and the line between online speech and hate crimes.
In her dissenting opinion, Judge Frances Rothschild said the appellate court ruling “alters the legal landscape to the severe detriment of First Amendment rights.”
The case involves a teen identified as “D.C.” in court documents, who launched a website in 2005 when he was 15 to promote his pursuit of an acting and singing career. According to court documents, the student has recorded an album and played a leading role (.pdf) in an unnamed feature film, using the pseudonym “Danny Alexander.”
Fellow students at his private high school, Harvard-Westlake School in Los Angeles, posted derogatory comments on his site, mocking his perceived sexual orientation and making hostile statements that threatened him with bodily harm, such as “Faggot, I’m going to kill you,” and “I want to rip out your fucking heart and feed it to you.”
The site was taken down, and the boy’s father contacted school authorities and the local police, who advised the family to withdraw their son from the school until an investigation could be conducted. The family did so and, after the investigation dragged on for a while, moved to Northern California.
The police ultimately determined that the postings did not meet the criteria for criminal prosecution and were protected speech.
The father then sued six students and their parents accusing them of hate crimes, defamation — for falsely calling his son a homosexual — and intentional infliction of emotional distress. The school’s board of directors and three employees were also sued.
One of the defendant students and his parents filed a motion to strike under the state’s anti-slapp law, saying the posts were jocular in nature, intended as a joke and that the statement the student posted was protected speech. The student had written, among other things, “I’ve wanted to kill you. If I ever see you I’m … going to pound your head in with an ice pick.”
A judge rejected the motion in 2008. That’s when the case went to the appellate court, which upheld the lower court’s decision, saying in part that the case didn’t fall under the anti-slapp-suit law and that the defendants “did not demonstrate that the posted message is free speech.” Judges Robert Mallano and Jeffrey Johnson, writing for the majority, said the messages revealed a harmful intent and were not protected speech.
The student-defendant stated in court documents that he was directed to the “Danny Alexander” site by another student and was “offended and put off by its ‘I am better than you’ attitude and its blatant bragging and self promotion.”
“I had spent time in the past studying Buddhism,” the defendant stated, “and in light of the Buddhist tradition of quiet understatement, the website’s distinctively narcissistic tone was disturbing.”
So he posted a message threatening to kill “Danny Alexander” with an ice pick.
The defendant says he was inspired by the derogatory comments of other posters and wanted to “one-up” them.
“I was in a playful mood and decided to add my own message to the internet graffiti contest that was apparently going on,” he said. “My message is fanciful, hyperbolic, jocular and taunting and was motivated by [the plaintiff’s] pompous, self aggrandizing, and narcissistic website — not his sexual orientation.”
The student says he later sent a letter of apology to the plaintiff and his family regretting his “infantile, immature” conduct. His father also grounded him and canceled his internet account.
In their ruling, the majority judges write that the message the student posted to the site was “unequivocal” and “a serious expression of intent to inflict bodily harm.”
“That these words produce grotesque and exaggerated images does not lessen the gravity of the threat,” they write. “The threat in this case was not merely a few words shouted during a brawl; it was a series of grammatically correct sentences composed at a computer keyboard over a period of at least several minutes.”
An attorney for the defendants said he would appeal the decision to the state’s supreme court.
Photo: Extraketchup/Flickr
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